specially concurring.
I agree it was legal error to deny defendant's challenge to a prospective juror employed by the Attorney General's Office. I write separately only to re-emphasize the "significant social costs," People v. Merrow, 181 P.3d 319, 322 (Colo.App.2007) (Webb, J., specially concurring), of a rule requiring new trials in cases such as this.
Defendant was convicted of murder based on a jury's verdiet supported by compelling evidence. There is no question as to the impartiality of the twelve jurors who returned the verdict. The basis for reversal is the erroneous denial of a for-cause challenge to a prospective juror who ultimately did not serve on the jury because defense counsel used a peremptory strike to exeuse him.
As noted in Judge Russel's opinion for the division in Merrow, this type of error would be harmless in federal courts. 181 P.3d at 320 (citing United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000)); see also Rivera v. Illinois, 556 U.S. 148, 156-62, 129 S.Ct. 1446, 1453-56, 173 L.Ed.2d 320 (2009) (discussing Martinesz-Sa-lazar). The error would also be harmless in most state courts, including some that applied a rule of automatic reversal before Martinez-Salazar. See, e.g., State v. Hickman, 205 Ariz. 192, 68 P.3d 418, 427 (2008) {overruling automatic reversal precedent); Klahn v. State, 96 P.3d 472, 480-84 (Wyo. 2004) (describing and following "movement away from an automatic reversal standard"); see generally Kopsho v. State, 959 So.2d 168, 175 & n. 3 (Fla.2007) (Bell, J., concurring in result only) (providing citations to "the ever-growing majority of state courts that apply the federal actual prejudice rule and do not require reversal unless a legally objectiona*833ble juror actually served on the jury" (footnote omitted) ); but see, e.g., Shane v. Commonwealth, 243 S.W.3d 336, 340-41 (Ky. 2007) (readopting automatic reversal rule).
Leading commentators agree an otherwise fair conviction should not be reversed simply because the trial judge erroneously denied a for-cause challenge to a prospective juror later removed with a peremptory challenge. E.g., 7 Wayne R. LaFave, et al., Criminal Procedure § 27.6(b), at 108 n. 21 (8d ed.2007) (describing it as "the better rule" that erroneous denial of for-cause challenge is harmless "so long as the jury that actually sits is impartial"). Indeed, the experienced trial judge in this very case is among the advocates for a harmless error rule. See William T. Pizzi & Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am.Crim. L.Rev. 1391, 1481-32 (2001).
The longstanding Colorado rule, however, requires automatic reversal where a criminal defendant uses a peremptory strike to cure an erroneous for-cause denial and exhausts all other peremptory strikes. See People v. Macrander, 828 P.2d 234, 244 (Colo.1992) (tracing genesis of this rule to a 1911 civil case); accord People v. Vecchiarelli-McLaughlin, 984 P.2d 72, 75 (Colo.1999); Carrillo v. People, 974 P.2d 478, 486-87 (Colo.1999). Thus far at least, our supreme court has not been persuaded to adopt the contrary rule of Martinez-Salazar. See People v. Lefebre, 5 P.3d 295, 305-08 (Colo.2000).
Our court is bound to apply this Colorado rule. I therefore must concur in the opinion reversing defendant's conviction.